NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. T.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.W.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP OF

S.W., a Minor.

November 21, 2014

Submitted November 13, 2014 - Decided

Before Judges Alvarez, Maven, and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-34-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief; Julie B. Christensen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.W. (Danielle Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant T.W. appeals a judgment terminating his parental rights to S.W., who was born in June 2011. Defendant contends that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the four prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm.

Based on our review of the record and applicable law, we are satisfied that the Division proved by clear and convincing evidence the requisite statutory factors required to terminate defendant's parental rights. Accordingly, we affirm.

I.

We incorporate the factual findings in Judge Marvin Schlosser's March 14, 2014 oral opinion, and highlight the following.

When S.W. was born, her mother, C.L.H., was residing in a transitional domestic violence shelter. C.L.H. had become pregnant when she and defendant were homeless in Atlantic City. On April 9, 2011, defendant was arrested and charged with unlawful possession of a weapon. After being released from prison on July 5, 2011, defendant lived in a separate shelter in Camden, New Jersey. During the first few months after S.W.'s birth, defendant visited with S.W. at the shelter where C.L.H. and the child were residing, occasionally staying overnight.

On October 7, 2011, the court granted the Division care and custody of S.W. in light of her parents' inability to provide for her needs. C.L.H. had refused to submit to a urine screen and admitted to smoking marijuana, had refused Division services, and had become involved in a physical altercation with defendant when the child was present. S.W. was placed in the home of resource parents, K.C. and B.C., where she has remained throughout these proceedings.

At the time of S.W.'s removal, defendant had again been incarcerated. On March 23, 2012, defendant received a four-year prison sentence for unlawful possession of a weapon. The judgment of conviction noted that, at age twenty-six, defendant already had an extensive criminal history, including nineteen arrests in the past seven years. Those arrests had resulted in convictions for two indictable offenses and one disorderly persons offense, and defendant had also violated his adult probation and parole.

In September 2012, upon defendant's release from prison into an Intensive Supervision Program, he immediately requested visitation with S.W. On October 15, 2012, the court ordered defendant to attend a psychological evaluation and parenting skills classes. Both parents were permitted supervised visitation with S.W. However, defendant had only three visits with S.W. because he violated ISP and was re-incarcerated in December 2012. Consequently the court suspended his visitation, and he remained incarcerated through the time of the guardianship trial. In March 2013, while incarcerated, defendant was charged with sexual assault and endangering the welfare of a child. Those charges remained pending at the time of the guardianship trial.

On December 8, 2011, a Division caseworker met with defendant in prison. Defendant requested that the Division evaluate his grandmother, W.W., and his godmother, L.K., for placement. When the Division contacted W.W., she refused to take S.W. unless a paternity test proved S.W. was defendant's child. W.W. stated that defendant had a history of claiming children were his because "he wants [the] love" that he did not receive from his mother who was incarcerated for murder, and that he even appeared on a television show claiming paternity of a child. W.W. also alleged that C.L.H. was prostituting herself and believed that S.W. might be another man's child. Because she questioned paternity, the Division sent W.W. a rule-out letter on February 27, 2012. Additionally, the Division attempted to contact L.K., but could not reach her.

Defendant also asked that another relative, S.G., be evaluated for placement. S.G. agreed to take S.W. until defendant was released. However, S.G. had been arrested two years earlier and was presently participating in drug court. On February 15, 2012, the Division sent S.G. a letter advising that she was not approved for placement based on her recent criminal activity which "include[ed] [seven] drug convictions for cocaine and or heroin."

On July 20, 2012, C.L.H. voluntarily stipulated to a finding of abuse and neglect because her "unabated mental health issues" impaired or threatened to impair S.W.'s physical, mental or emotional condition. C.L.H. thereafter did not comply with court orders or services supplied by the Division. She eventually voluntarily surrendered her parental rights to the resource parents on November 8, 2013.

Judge Schlosser conducted a four-day guardianship trial in February 2014. At the time of trial, S.W. had been with her resource parents for over two years. The Division presented the testimony of Division caseworker Tracy Marino, and an expert psychologist, Dr. Alan J. Lee. Defendant testified, and he also called Burlington County Sheriff's Department Detective Eric Salmastrelli, who witnessed defendant's bonding evaluation with Dr. Lee.

Dr. Lee had evaluated defendant at the Burlington County Jail. Based on his evaluation, including an assessment of defendant's sexual offense risk, Dr. Lee diagnosed defendant with a history of cannabis and cocaine abuse and impulse control disorder under Axis I. He also diagnosed defendant with personality disorder with narcissistic and antisocial characteristics under Axis II, which caused "behavior and attitude and impulse control problems, patterns of violating laws or societal expectations, a heightened level of anger and resentment, [and] propensity to act out in impulsive and oftentimes reckless ways with little concern as to the consequences of his behaviors." Dr. Lee found that defendant showed "a pattern of self-absorption" that caused him to see himself "in a rather grandiose, superior light, in a way that lacks empathy [and] an ability to accurately perceive what other people need or want or expect." Because of his self-absorption, defendant is unable to accurately understand other's needs and appropriately respond to them, which causes "patterns of irresponsibility, inconsistency, some problems with impulse controls."

Dr. Lee also found that defendant would not be able to care for S.W. over time because he had a high risk for criminal recidivism and drug relapse. Additionally, he noted that S.W. had only lived with defendant for one week, and had between ten and fifteen visits with him, which was a very minimal amount of involvement for a two-year-old. During a separate bonding evaluation conducted by Dr. Lee, S.W. never approached defendant, clung to the caseworker, and "appeared to be under distress in [his] direct presence," crying and whimpering. Dr. Lee unequivocally concluded that defendant was an unsuitable caretaker for S.W.

In contrast, Dr. Lee also conducted a bonding evaluation of S.W. with her resource parents and found a significant, positive psychological bond between them. He found that the resource parents gave S.W. structure, direction, reinforcement, and guidance. He concluded that based on S.W.'s behavior, K.C. and B.C. were providing proper care, and that the child had been flourishing and progressing while in their care for the past twenty months.

Ultimately, Dr. Lee found within a reasonable degree of psychological certainly that S.W. was not bonded to her father and that there was a significant risk of psychological or emotional harm to S.W. were she to be cared for by either biological parent. Conversely, there was a low risk of harm were the court to sever her relationship with defendant because his prognosis for change was poor and it would take at least one year for him to complete services even if he was released from prison. In sum, Dr. Lee concluded that "this permanency for [S.W.] should be affected [sic] expeditiously and without further delay."

Marino confirmed defendant's incarceration since S.W.'s October 2011 removal, except for a brief period from the end of September to the beginning of December 2012. She also testified that defendant never financially contributed to S.W.'s care. Regarding services provided to defendant, Marino testified that the Division cannot offer services to incarcerated individuals, but that it scheduled four visits during defendant's release, one of which he cancelled. She further confirmed that the Division ruled out defendant's aunt, grandmother, and a family friend as caregivers.

Marino confirmed that K.C. and B.C. were equipped to deal with S.W.'s medical needs and that S.W. was happy and close with her resource family. She testified that while defendant contacted the Division numerous times asking for photographs and updates about S.W. and consistently requested visitation, he would have to complete many evaluations and classes, as well as secure suitable housing, before he could be considered an appropriate caregiver, and there was no evidence he was prepared to do so upon release.

Detective Salmastrelli testified regarding the interactions he observed while monitoring defendant's two visits with S.W. in the courthouse. He observed that S.W. was upset and was having a hard time during the visits. However, he noted that defendant "tried very hard" to interact with S.W. and "exhibited fatherly emotions . . . towards his child." He believed that the interaction was difficult for S.W. because she did not know defendant and was confused.

Defendant testified and admitted fathering another child that he has had no contact with since 2012. He also acknowledged that he had pending criminal charges, which included performing cunnilingus on a child under thirteen. He testified that his daughter was "naturally compassionate" and concerned about others, stating "[s]he's my baby. She's my heart." However, he acknowledged not knowing about her medical issues until the trial, including gastro reflex, eczema, Erb's palsy, congestion, and decreased appetite.

When asked how he planned to care for S.W. upon release from prison, defendant testified that he would secure housing, participate in drug treatment and therapy, and obtain employment as a commercial driver until his singing career was launched. He stated that he had a "Smartbook" from a social worker that helped him plan for release and assist in stabilizing his life to be able to parent, and that he participated in many programs in prison that would allow him to care for S.W. effectively. He also claimed to have a support system of family and church members. Regarding his relationship with S.W., he testified that he planned to allow her to slowly reattach herself to him, and that he planned to maintain contact with the resource family. When asked about the bonding evaluation, defendant explained how he tried to soothe S.W. and play with her, and that a psychological connection existed between them. According to defendant, being reunited with him was in S.W.'s best interests.

On March 14, 2014, Judge Schlosser issued a comprehensive oral decision and signed an order terminating defendant's parental rights. The judge carefully reviewed the evidence and presented his findings of fact, determining that both Marino and Dr. Lee testified credibly, and that Dr. Lee's opinions were not rebutted by any other expert witness. In contrast, defendant's testimony, "while heartfelt[,] lack[ed] the ring of credibility," which the court found was "consistent with Dr. Lee's finding of grandiosity." Judge Schlosser concluded that the Division had satisfied the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a). This appeal followed.

II.

Appellate review of a family court's findings is "limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision is "supported by substantial and credible evidence on the record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (internal quotation marks omitted). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Further, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, "[w]e will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (internal quotation marks omitted).

The Division must prove by clear and convincing evidence that termination of parental rights is in the best interests of the child. Id. at 447; see N.J.S.A. 30:4C-15(c). The Division must show that

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

A.

In concluding that the Division established the first prong, Judge Schlosser properly recognized that incarceration, standing alone, is insufficient to prove parental unfitness or abandonment. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 555 (2014); In re Adoption of Children by L.A.S., 134 N.J. 127, 137 (1993). However, "'[i]ncarceration is . . . probative of whether the parent is incapable of properly caring for . . . or has abandoned the child.'" R.G., supra, 217 N.J. at 554-55 (quoting L.A.S., supra, 134 N.J. at 136).

Applying these principles, the judge found that by virtue of his lengthy incarceration, defendant "absented himself from his daughter's life when she had need for him, and this is particularly true because of [C.L.H.'s] status." The court determined that defendant "had every opportunity to remain in his daughter's life when released into ISP but failed to take advantage of that opportunity when he was returned to state prison." The judge correctly concluded that it was this absence from S.W.'s life that "clearly endangered [her] safety and development." Indeed, the harm to the child need not be physical, and "[a] parent's withdrawal of [] solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

B.

The second prong is aimed at determining whether the parent has "cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Under the second prong, a trial court determines whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.

As to this second prong, there is substantial evidence to show that defendant is unable to eliminate the dangers posed to S.W. Dr. Lee's diagnosis reflected defendant's "longstanding history of behavior and attitude and impulse control problems, patterns of violating laws or societal expectations" which, he opined, "would have a notable effect on [defendant's] ability to provide consistency and nurturance, guidance and protection for the child." Citing "the unrebutted testimony of Dr. Lee," the court found that defendant was unable to safely parent S.W.

We note that the second prong can also be satisfied where "there is clear and convincing evidence that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of her bond with foster parents[.]" K.H.O., supra, 161 N.J. at 363. Here, the trial judge credited Dr. Lee's expert opinion that a further delay in permanent placement would cause added harm to S.W., and that S.W. would suffer significant emotional harm if removed from her resource parents. The record clearly supports the judge's findings, as S.W. has been with her resource parents since she was three months old. Moreover, it would take defendant at least one year to complete services even if he was released from prison, thus adding to the delay in permanency.

C.

In challenging the trial court's findings regarding prong three, defendant argues that the Division failed to make "reasonable efforts" to provide him with services. He also faults the Division for failing to arrange visitation with S.W. We reject these contentions as meritless. Clearly the Division's efforts to provide defendant with services were hampered by the fact that he was incarcerated throughout most of these proceedings. Despite his incarceration, the Division arranged to have psychological and bonding evaluations conducted. During the brief period that defendant was not incarcerated the Division also arranged for visits with the child, which the court then suspended when defendant was re-incarcerated.

Defendant further argues that the Division failed to consider alternatives to termination, specifically by failing to timely search out relatives who might serve as suitable placement options for S.W. Defendant cites N.J.S.A. 9:6B-4(b), pursuant to which

[a] child placed outside his home shall have the following rights, consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development: . . . [t]o the best efforts of the applicable department, including the provision or arrangement of financial or other assistance and services as necessary, to place the child with a relative.

Defendant also relies on N.J.S.A. 30:4C-12.1, which provides

In any case in which the [Division] accepts a child in its care or custody, including placement, the [Division] shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within 30 days of the [Division's] acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The [Division] shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.

The basis for this requirement is the "importance of family placements in termination proceedings" and the preference for not filing a petition for termination and allowing a child to be "cared for by a relative [if] a permanent plan for the child can be achieved without termination of parental rights." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579 (App. Div. 2011) (citing N.J.S.A. 30:4C-15.3(a)). Further, the Division's policy is "to place children with relatives whenever possible," and the Division cannot pursue termination and adoption "without at least first exploring available relative placements." Id. at 579-80. Because "final separation from a biological parent is a harm in itself," and "[e]xperts are increasingly concerned about the seriousness of this loss and are recognizing the need for continued contact with a biological parent, even a flawed parent . . . [and therefore] doubts are to be resolved against [parental rights] destruction." N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 439-40 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992) (citations and internal quotation marks omitted).

Defendant argues that the Division obstructed his plan to have S.W. placed with W.W. as an alternative to terminating his parental rights. He claims that the Division ignored his request initially, and when it finally investigated W.W. and she requested a paternity test, the Division stalled and ruled W.W. out without later notifying her that the paternity test was positive. However, defendant cites no supporting authority for his contention that the Division was under a continuing duty to notify W.W. of the test results, nor does he posit any reason why he himself could not have notified her. Notably, W.W. did not appeal the decision to rule her out.

Defendant also asserts that the Division did not investigate his godmother, L.K., whom he provided as well, and ruled out his pastor "for no reason." However, the Division did attempt to contact L.K., but was unable to reach her. Although another relative, S.G., came forward and expressed interest in caring for S.W., she was not a viable placement option due to her drug-related criminal history. Finally, nothing in the record indicates that the pastor was a relative of defendant, and the Division expressed concerns that defendant would have improper access to S.W. under such an arrangement. We thus find ample support for the trial court's conclusion that the Division undertook reasonable efforts to consider alternatives to termination.

D.

As to the fourth prong, there is compelling evidence to support the trial court's conclusion that the termination of defendant's parental rights will not do more harm than good. The bonding evaluation of S.W. with her resource parents showed that S.W. is profoundly attached to them and thriving in their care. The court again found "the unrebutted testimony of Dr. Lee [] persuasive." As noted, Dr. Lee opined that there was a significant risk that S.W. would suffer severe and enduring psychological or emotional harm if her relationship with the resource parents was terminated, while no such risk existed were defendant's parental rights to be terminated.

In summary, Judge Schlosser did not err in concluding that the best interests of S.W. require a stable, permanent home and an opportunity to be adopted. He correctly terminated defendant's parental rights.

Affirmed.